The thought of not being able to see to the care and upbringing of your children is a painful one. That pain could be stopping you from taking the initiative to create an estate plan detailing your wishes should you become unable to care for your children. If tragedy should strike and you do not have a guardianship plan in place, then a court will be forced to choose your child’s guardian with no idea who you would prefer to step in.
Technology has helped to make the world smaller. Many people maintain close, personal relationships with people thousands of miles away. When it comes time to choose a guardian, your top choice may not be a U.S. citizen. While the law allows you to select someone who is not a U.S. citizen or a lawful permanent resident, there are things you need to consider before making that decision.
The first thing to understand is that your choice of guardian is not guaranteed. The court will consider your preference, but it retains the authority to reject your choice in favor of another. In addition, the selection of a non-citizen guardian can complicate your choice of trustee due to U.S. tax laws.
What Is Guardianship?
A guardian is responsible for taking over caregiving responsibilities if you become unable to perform them. Those responsibilities include things like feeding, housing, educating, and providing medical care for your child.
In most cases, when one parent becomes incapacitated, the other parent will be tasked with all caregiving responsibilities. In some cases, both parents are unable to provide the required care. That is the most common situation you need to consider when naming a guardian.
Depending on your circumstances, you may choose a sibling, your parents, or a friend as a guardian. Your choice should take into account what would be best for your child. Who can provide the physical, emotional, mental, and financial support necessary to raise your child? There may be no perfect choice and, of course, the person you choose needs to be willing to take on the responsibility.
Estate plans should include at least one named guardian. If possible, you should list more than one option, to improve the chances that someone will be able to take over if the need arises. The failure to have an estate plan that includes this information could have severe consequences. The court would be forced to choose a guardian on its own, possibly never considering the person you would choose. If your closest relatives are not able or willing to take on the guardian role, the court may be forced to turn to a foster family.
Even if you have a will and name a guardian, the guardian named in your will is just a candidate. A family member could challenge your nomination in court and attempt to install an alternative, or the court may decide on its own that a guardian is unqualified.
Choosing a Non-Citizen as Guardian Is a Possibility
State law dictates who can legally become a guardian. The process and the required elements vary from one state to the next. In general, courts will look at any factors that could affect the party’s ability to provide a safe and healthy environment for the child. That may include things like:
- Financial situation
- Living arrangement
- Age
- Criminal history
- Capability, physical and mental, to care for the child
California courts investigate where the child will live, whether the guardian has a record of neglect, abuse, or criminal behavior, the child’s educational prospects, the proposed guardian’s family situation, and more. It will also discuss the proposed guardianship with the child if that child has reached a sufficient age and maturity level.
A person’s citizenship status could affect the court’s analysis in several ways, including:
- Will the child live outside of the United States?
- If so, will the country of residence be safe and suitable for the child?
- Will the child have citizenship status in the country of residence, and if not will that affect the child’s life?
- Is the child familiar with the country of residence? Are there language barriers? Are they familiar with the country through prior visits?
- Is the proposed guardian able to participate in the guardianship process in the United States? Can they obtain a visa and remain in the country for the required time?
- Would the proposed guardian be able to relocate to the United States if necessary? This includes a discussion of the guardian’s legal status regarding citizenship or lawful permanent resident status.
The details matter a great deal when considering whether a guardian is the right choice. The court may closely consider your and your child’s connection to the country where the child will reside. Is it where you and your family come from? Does your preferred guardian result in the child being sent to an unfamiliar location with unfamiliar people? In such a case, the court could choose to select a different guardian to maintain the continuity of life in the U.S.
This possibility is why you should consider providing evidence supporting your choice of a guardian who is not a U.S. citizen or lawful resident. Your estate plan can include the reasons you have chosen this person as guardian. If the court understands your reasoning, it is more likely to go along with your choice of the right person to raise your child.
Two Types of Guardianship
In California, there are two types of guardianship, which can be held by the same person or two different people:
- A guardianship of the person of the child refers to who has custody.
- A guardianship of the child’s “estate” refers to the child’s property.
In some cases, the right person to provide a loving, supportive environment for your child may not be the best choice to oversee the financial aspects of guardianship. The law allows you to split the roles to account for these situations.
Choosing a guardian who is not a U.S. citizen raises another situation where you might consider separating the two roles. Many estate plans handle the financial well-being of a minor child by establishing a trust for the benefit of the child. If the trustee you choose is not a U.S. citizen, the trust could be considered a foreign trust when it comes to taxes.
Foreign trusts do not receive the same treatment as U.S.-based trusts for tax purposes. Naming a foreign trustee could reduce the amount available to your child, while also requiring the trustee to adhere to different rules regarding how the trust activity is reported.
Get Answers to all Your Guardianship Questions
Choosing a guardian for your child is not an easy decision. It is important to have accurate and reliable guidance from an experienced estate planning attorney.
At the Law Office of Janet L. Brewer, we can help you create an estate plan that will protect your children by selecting the best possible guardian. Call our Los Altos offices at 650-325-8276 or contact us online to get started today.
